Significant activity has taken place in the areas of chain of responsibility (CoR), executive officer liability and the Heavy Vehicle National Law (HVNL) in recent times (see also our previous updates).

On 8 July 2015, the National Transport Commission (NTC) released its second discussion paper in relation to CoR, ‘Primary Duties for Chain of Responsibility Parties and Executive Officer Liability’.  The NTC had been asked to provide detailed recommendations to the Ministers at their Transport and Infrastructure Council of COAG (TIC) meeting on 6 November 2015.

A TIC communique dated 6 November 2015 stated that the Council was briefed by NTC and NHVR and “…agreed to measures designed to extensively modernize the current Heavy Vehicle National Law, including the introduction of primary duty of care provisions on operators, prime contractors and employers...”

The NTC then publicly released its policy paper, ‘Primary Duties for Chain of Responsibility Parties and Executive Officer Liability’dated November 2015 in which it provided 26 detailed recommendations for amendments to the HVNL.  The Policy paper was informed by the 23 submissions to the NTC in response to its July policy paper, of which a majority supported the recommendations.

Some of the 26 recommendations include that:

  1. the CoR provisions in the HVNL be amended to a WHS approach by imposing a ‘primary duty of care to ensure, so far as is reasonably practicable, the safety of road transport operations’ (Primary Duty of Care).
  2. the Primary Duty of Care apply to all current chain of responsibility parties based on the role they perform within the chain, limited to the existing regulatory framework of the HVNL.
  3. the term ‘reasonably practicable’ be defined in the HVNL and its definition to be consistent with the definition used in other national safety laws. The current standard of ‘all reasonable steps’ be replaced with ‘so far as reasonably practicable’ throughout the HVNL.
  4. the maximum penalties for breach of the primary duties be better aligned with the maximum penalties available under the national safety laws.
  5. the HVNL be amended to include general principles applicable to the primary duties, similar to the principles set out in the Model Work Health Safety Bill, and include principles of shared responsibility and accountability similar to the Rail Safety National Law.
  6. the HVNL be amended to make clear that the HVNL primary duties are complementary to the existing occupational health and safety duties, and in the event of any inconsistency between a provision of the HVNL and jurisdiction occupational health and safety legislation, the provision of that jurisdiction’s occupational health and safety legislation prevails to the extent of that inconsistency.
  7. where an act or omission constitutes an offence under both the HVNL and a jurisdiction’s occupational health and safety legislation, the offender is not liable to be punished twice in respect of the offence.
  8. the existing executive officer liability provision in s.636(2) of the HVNL be reformulated as a positive due diligence obligation.

A bill resulting from the recommendations is to be provided to Ministers for their consideration in May 2016.

In addition, NTC released a Regulatory Impact Statement for Public consultation, ‘Heavy Vehicle National Law – Extension of Executive Officer Due Diligence Obligation’ dated March 2016 (RIS).  Executive officer liability refers to the personal liability imposed on individuals who are involved in the management of corporations.

The RIS puts forward the following 4 options for public comment:

  1. Option 1: a positive due diligence obligation to be placed on executive officers in relation to the existing CoR offences in the HVNL irrespective of whether the corporation has been convicted or found guilty of the offence.  Executive liability for non-CoR offences in the HVNL are not amended (there are currently about 34 offences which would fall into this category after the other amendments are made).
  2. Option 2: a positive due diligence obligation would be put into place as per option 1, however, the existing executive officer liability for non-CoR offences would be repealed and the offences would no longer attract executive liability.
  3. Option 3: a positive due diligence obligation would be put into place as per option 1 and it would be extended to apply to both CoR provisions and the non-CoR offences currently the subject of executive officer liability provisions.
  4. Option 4: in addition to option 1, would “…introduce a positive due diligence obligation for the executive officers of any party with a duty or obligation under the HVNL.  This would cover all aspects of the HVNL not just the existing offences for which there is executive officer liability.

Comments are sought by the NTC until 22 April 2016 after which the NTC will develop the final recommendations for consideration by TIC.